Update – Agency Workers

In the case of Matei v Brooknight Guarding Limited, the EAT considered whether an employee on a zero hours contract could be an agency worker if his position with the ‘end user’ was temporary rather than permanent.

The Respondent in this case was a security company which employs security guards on what are described as ‘zero-hour contracts’. The Claimant was employed by the Respondent as a security guard on a ‘zero- hours contract’. The nature of the assignments was that he could be assigned to different sites for different clients on an ad hoc basis but aside for a short period with another end user, he worked mostly for one particular client, Mitie. He was dismissed after 21 months.

The Claimant claimed that he was an agency worker, and therefore entitled to the same basic working conditions as the Mitie staff after 12 weeks’ service. However, the Respondent argued that the Claimant worked permanently for Mitie.

The Tribunal agreed with the Claimant, on the basis that he had been supplied to work temporarily for the end user and worked under their supervision and direction. The Respondent appealed. The EAT dismissed the appeal. The Respondent argued that because the Claimant was on a zero hours contract, this did not preclude him from being a permanent employee but the EAT rejected this. They held that the position was temporary as it was not permanent or an indefinite arrangement. The EAT considered the Tribunal had adopted the correct approach to the issue of employment status, and even the relevant employer’s evidence suggested that the arrangement had been temporary.

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